Issue No. 6

December 2017 Special Issue: The Reform of French Contract Law

Program supported by the ANR  n°ANR-10-IDEX-03-02

Law Review

EXCELLENCE

IN I T I A T I V

E

Penalties for contractual non-performanceHélène Boucard

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MONTESQUIEU LAW REVIEW Special Issue - December 2017

The Characteristic Aspects of the Reform

Penalties for Contractual Non-Performance: the Art of Doing Something New With Something Old,

and Vice Versa

Hélène Boucard, Professor at the University of Poitiers

The Law of 16 February 2015 empowering the Government to reform by way of Ordinance ordinary

contract law, the general regime and proof of obligations, was intended inter alia to “consolidate

the rules relating to the non-performance of contracts”. This was done, in theory, by the

Ordinance of 10 February 2016 (1), in a Section V, Non-performance of the Contract, Chapter IV,

The Effects of the Contract, in Articles 1217 et seq. of the Civil Code. That could be the end of the

“exploded” presentation of contractual non-performance denounced by Dean Tallon (2).

Article 1217 opening Section V outlines the means available to the unsatisfied creditor, detailed by

its sub-sections: defence of non-performance (Articles 1219 and 1220), enforced performance in

kind (Articles 1221 and 1222), the reduction in price (Article 1223), termination (Articles 1224 to

1230) and reparation of loss (Articles 1231 to 1231-7) - for set-off claims, reference is made to

the general regime of obligations at Articles 1347 et seq.

Article 1218 (3) defines contractual force majeure and provides for some of its effects. It is

regrettable that the duality of unforeseeable circumstances and force majeure (under former

Article 1148) should have been removed from the extraneous cause at former Article 1147,

although said duality remains in special contract law. Nevertheless, the definition of the prevention

of performance at Article 1218 is sufficiently flexible to allow judicial, variable-geometry

assessments, restoring the hierarchy between vis maior and vis minor. As to the effects of the

prevention, the alternative between suspension of the obligation and termination of the contract is

reductive: the text omits the award of damages, but Article 1231-1 supplements it, as well as the

reduction in price, although the latter’s fate is less obvious.

However, while the announced reform of civil liability has followed the course outlined by the

proposals set out on 13 March 2017 (4), it would defeat all that the Ordinance does, since

damages would be detached from subheading I, The contract, and move to subtitle II, Civil

Liability. The legislature would thus take part in the controversies relating to contractual liability,

one of several reasons for the disordered process of reforming the law of obligations (5). The

Ordinance is already a step in that direction, the title of sub-section V relating to damages -

Reparation of loss resulting from non-performance of the contract - being in line with the Catala

preliminary draft and not the Terré preliminary draft (6). On the other hand, the substance of the

provisions is almost intact, Articles 1231 et seq. essentially proceeding with a recodification of

established law (7).

In reality, Articles 1217 et seq do not gather all the rules relating to contractual non-performance

(8). Beyond the statement of the means open to the creditor, the rules governing non-performance

must be sought out in other provisions, in which the omissions and innovations are of unequal

scope.

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Among the silences, non-performance is classically defined only as opposed to satisfaction, Article

1217 simply distinguishing between the absence of an act of performance and an incomplete act

of performance. Article 1342 inadvertently restricts satisfaction to "the voluntary performance of

the act of performance which is due”, as if enforced performance were not satisfaction. Moreover,

to present performance as that of the act of performance is an ellipse because performance

concerns the obligation, for which the act of performance forms the purpose according to Article

1163. Conversely, by covering the non-performance of the contract, the undertaking and the

obligation one by one, the Ordinance fuels the debate as to whether non-performance means that

of the obligation or extends to the breach of the contract itself. It is equally unfortunate that the

Ordinance does not define obligations, and claims to abolish the classifications thereof according

to their purpose or its extent (9). Similarly, apart from Article 1186 on multiple contracts, the

effects of non-performance against third parties are neglected, although Article 1234 of the

proposals of 13 March 2017 is intended to fill this gap for damages. The contractual

accommodation of non-performance is similarly neglected, with the exception of Article 1170

which prohibits the clause depriving the essential obligation of its substance, and Article 1171

authorising the courts to eradicate unfair terms in standard-form contracts, while the penalty

clause is reduced to the bare minimum, at Article 1231-5.

Among the contributions, we can welcome the recognition by Article 1345 of the creditor's

residence (10), even restricted to non-receipt of satisfaction or its prevention (11). The non-

performance imputed to the debtor resurfaces in the concept of unforeseen non-performance, at

Article 1218 defining force majeure, then at Articles 1351 and 1351-1 relating to the impossibility

of performing – barely better written than the former articles 1302 and 1303, but the subject is

challenging. The main contribution of the reform therefore concerns the effects of contractual

non-performance between the parties, and yet that must still be qualified because it is less a

revolution than it is a renewal. Technically, none of the means open to a dissatisfied creditor at

Articles 1217 et seq. was ignored by the original Code, which contained illustrations of each. The

progress made by the reform – if indeed advances have been made - lays elsewhere.

From the outset, two trends emerge. The first is clear and consists in the generalisation and/or

dejudicialisation of penalties for non-performance. The generalisation results from the fact that

those which do not already appear in provisions specific to certain contracts are now included in

the provisions of the ordinary contract law. This is the case of the defence of non-performance

and reductions in price. Dejudicialisation refers to a reversal of the trial charge. The judicial

pronouncement of a measure requested by the creditor replaces, in case of dispute and at the

request of the debtor, a judicial review of a measure taken unilaterally. The court is therefore not

necessarily seised a priori, but possibly a posteriori. This is partly the case of performance at the

expense of the debtor, the reduction of the price and the termination of the contract. However,

this decline in referrals to the courts does not prevent the permanence of their role, which is

illustrated by the second trend.

More discreet, this lies in the prioritisation and combination of penalties for non-performance.

Their graduation according to their gravity is apparent from the conditions laid down for their

exercise, extended by the powers granted to the court. This prioritisation of eligible penalties

concerns them all, some (defence of non-performance, performance in kind and termination of

the contract) more than others (the reduction in price and damages). The combination of penalties

for non-performance consists in adding those that are compatible, and would require the

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adjustment of additional damages. In this regard, Articles 1217 et seq. only sketch out the

“overall” logic for which Dean Tallon argued.

On the other hand, neither of these trends reflects a strong conception of responses to non-

performance. No more than the original Code, Articles 1217 et seq. do not refer to "actions open

to the creditor”, contrary to Articles 1341 et seq. on the "right" to enforced performance and

oblique and paulian actions. This can be explained by the trend towards dejudicialisation - from

which forced performance is specifically excluded. The expression of “remedies for non-

performance”, inspired by the “remedies for breach of contract” in common-law systems and

present in the 2015 draft, has been removed. It is true that this much-criticised wording (12) is an

ellipse: either the non-performance itself or, where it is irremediable, the situation born of the

non-performance is remedied, as illustrated by the termination of the contract. Nor do the texts

mention the “means” (moyens) available to the creditor; this is a translation of “remedies” by the

various instruments of unification but little used by French jurisprudence. Article 1217, alone,

refers to "sanctions". The name is customary, the majority jurisprudence making the defaulting

debtor the culprit and the diassatisfied creditor the victim. However, in a generic way, a sanction is

devoid of punitive connotations. It seems to us that, subject to these nuances, the various labels

are equivalent. Nevertheless, we will also choose, for its classicism and its plasticity, that of

penalties - for non-performance, not the debtor - although this is still an ellipse because the

penalty for non-performance is, moreover, that of the contractual obligation.

Having clarified the above, the clear trend towards the generalisation and/or dejudicialisation of

penalties for non-performance (I) precedes and reveals the more discreet trend towards their

prioritisation and combination (II).

I. Generalisation and/or dejudicialisation of penalties for non-performance

Following the order at Article 1217, termination - which leads to the disappearance of the contract

(B) - should be isolated from penalties which either are neutral and do not presage the fate of the

contract (such as the defence of non-performance) or tend to preserve the contract (such as

enforced performance in kind or a reduction in price (A)). Only damages fall outside the scope of

such generalisation and dejudicialisation since, resulting from non-performance (former Section

IV), they already came under The effect of obligations (former Chapter III) and, unless otherwise

agreed, their allocation remains the prerogative of the courts.

A. The preservation of the contract

If the defence of non-performance has become generalised, its dejudicialisation need not be: it is

already a private remedy (1.). Enforced performance in kind is neither really generalised nor fully

dejudicialised (2.), while the reduction in price is generalised and partially dejudicialised (3.).

1. The defence of non-performance

The defence of non-performance is provided in Articles 1219 and 1220 (13). Its generalisation is

not accompanied by any dejudicialisation as it is an extrajudicial remedy. Prior notice is not even

required. The texts are terse and lay down the principle of the defence, refusal or suspension,

without setting the specific rules. Following them, we can distinguish between proven non-

performance or suspension of performance.

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a) Proven non-performance

Article 1219 generalises the defence of non-performance present in texts specific to certain

contracts, with contracts of sale at the forefront of these. However, it boils down to a minimal

codification of the case law acquis. Indeed, although commentators and the Court of Cassation

have long systematised the defence of non-performance in synallagmatic contracts, questions

remain as to its implementation. However, the contribution of the legislation is limited enough to

leave the parties without guidance, and so that in the event of dispute, the court is free to copy (or

not) existing solutions. Specifically, Article 1219 does not indicate whether it is confined to

complete synallagmatic contracts, whether it presupposes the interconnectedness of reciprocal

obligations, or on which party the burden of proof is incumbent. In addition, the requirement of

“serious non-performance” merits further clarification. Only total refusal on the part of the creditor

resulting from total non-performance of the debtor – thus disregarding the exclusion of a partial

refusal against partial non-performance, would appear to be envisaged. In reality, it is necessary

but it is sufficient that the defence be proportionate to the alleged non-performance - as

indicated in the Terré draft. The sufficiently serious non-performance is therefore that which

legitimises the refusal to perform notified by the creditor, which the court assesses in the event of

a dispute.

b) Suspension of performance

Article 1220 allows the suspension of performance, or anticipation of non-performance. It is

already included in provisions relating to domestic or international sales, and is found in

judgments handed down by the Court of Cassation. Rather than being an invention, it is again a

generalisation. In addition to the fact that the non-performance to come must be "evident" and its

"consequences ... sufficiently serious" for the creditor, the creditor must notify the suspension of

his performance "as soon as possible”. In the event of a dispute, each of these standards requires

judicial assessment.

Instead of the seriousness of the consequences of non-performance for the creditor – this wording

being inspired by the Terré draft - it would have been preferable for Article 1220 to recall, no

more and no less, the requirement of proportionality of the suspension of performance. It is also

regrettable that the text does not say a word about the assurances of satisfaction that the debtor

can provide to the creditor. It is they which, in the Vienna Convention, give meaning to the

timeframe in which this preventive remedy is contained. The notification of the creditor allows the

debtor to ensure future satisfaction before the deadline has been reached. Therefore, Article 1220

sets a deadline for which the sanction (a forfeiture, it is assumed) and the basis (we hesitate on the

purpose of this incumbency) are indefinite.

The defence of non-performance constitutes a transitional penalty: sooner or later, the situation

will be resolved, preferably by enforced performance in kind.

2. Enforced performance in kind

Enforced performance in kind of an obligation is the subject of Articles 1221 and 1222, dealing

respectively with enforcement by the debtor himself, or with the creditor or a third party at the

expense of the debtor (14). It turns out that performance in kind remedies both a lack of benefit

and an incomplete act of performance, which it corrects. However, limits have not been set out

(but can they be?) between performance and reparation in kind (15), performance by others and

termination of the contract (16). The generalisation of enforced performance is more “advertised”

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than it is effective because it comes with restrictions; its dejudicialisation is limited to performance

at the expense of the debtor, and then only partially.

a) Generalisation “advertised”

Article 1221 clarifies the enforcement of non-pecuniary obligations, the uncertainty of which was

enhanced by a sclerosing interpretation of the former Article 1142, appearing to disregard it for

obligations to do and not to do.

From now on, the principle of performance in kind by the debtor is posited without distinction

according to the purpose of the obligation (to do, not to do and to give), since formally this trilogy

has been abolished. However, this principle suffers from the limits suggested by the Terré draft,

and is likely to offend the proponents of the primacy of performance in kind. In addition to

impossibility (to which is added uselessness), Article 1221 excepts performance by the debtor at a

cost manifestly disproportionate compared to the interest for the creditor. Article 1222 makes

performance by the creditor or a third party at the debtor's expense subject to its "reasonable"

cost. Furthermore, Articles 1221 and 1222 require prior notice. The solution seems to disregard

the distinction between the terms “imperative” and “indicative”, renewed by Article 1344. At Article

1222, the solution is best conceived if the formal notice does not concern the obligation due but,

similarly to the German Nachfrist, gives the debtor the option of performing the same rather than

assuming the cost of performance by others. Lastly, Article 1222 confines performance at the

debtor’s expense to a reasonable time period granted to the creditor; the function as a penalty

remain unclear, and of such a nature as to run up against opponents to the multiplication of

necessarily standard deadlines.

b) Limited dejudicialisation

Article 1221 does not dejudicialise enforced performance by the debtor himself: in the absence of

voluntary performance, the creditor must "pursue" him for the purpose of obtaining an enforceable

instrument, if he does not already have one. The same is true, at Article 1222, of the debtor being

ordered by the court to advance the sums necessary for performance by the creditor or a third

party, where a “request to the debtor” for their repayment would seem sufficient. Lastly, unlike the

2015 draft Ordinance, Article 1222 no longer exempts the creditor from prior judicial

authorisation when the performance of the obligation requires the destruction of "what has been

done in violation of the same” (17).

3. Reduction in price

a) A welcome generalisation

Article 1223 generalises a penalty that has so far only been included in the provisions of certain

contracts, primarily the sale under the seller's guarantee. The Court of Cassation very early

extended this sanction, for example with the judicial reduction of the price for non-conformity of

the goods in a commercial sale, or the judicial revision of the fees according to the quality of the

service rendered in the mandate or the business. The generalisation of the reduction in price in

the event of defective performance is disputed (18) but welcome. However, the text contains (at

least) two inaccuracies and one instance of awkwardness. Firstly, the acceptance of "incomplete

performance" is not synonymous with the recognition of the benefit, which would be the discharge

of the obligation and excluding any penalty for non-performance. It is only the acceptance of the

act of performance on the basis of non-satisfactory payment (19). Secondly, Article 1223 provides

no method of calculation and does not define the factor of proportionality. This causes little

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difficulty when the reduction in price amounts to a partial termination of the contract for a partial

benefit. This becomes more difficult when the reduction rebalances the contract because of the

incomplete quality of the service provided. Thirdly, the requirement of an unsuccessful notice to

correct the defective act of performance becomes useless when the non-performance turns out to

be irremediable.

b) Ambiguous dejudicialisation

The Ordinance does not dispel the ambiguity born of the preliminary draft. Under Articles 1217

and 1223, the creditor "requests" the reduction in price, without knowing whether he must apply

to the court or the debtor. The dejudicialisation of the reduction in price appears reserved for the

assumption that the creditor, having not yet paid the price, has "notified his decision" to the

debtor, and this “as soon as possible”. Again, it would have been necessary to state the function

and penalty for the timeframe thus imparted. In any event, any dispute over partial payment or

restitution of the price requires ex-post judicial review, at the initiative of either the debtor or

creditor.

B. The disappearance of the contract

The ultimate sanction leading to the disappearance of the contract, termination for non-

performance was already provided at former Article 1184 (20); no need, therefore, for

generalisation. It is undoubtedly regrettable that it is admitted only for proven, not anticipated,

non-performance. On the other hand, its dejudicialisation is the most striking. Article 1217,

according to which the creditor may "provoke" it , announces the dejudicialisation of the methods

of termination listed at Articles 1224 to 1227, to which must be added Article 1218. Articles 1229

and 1230 structure the consequences thereof more or less happily (21).

a) Striking dejudicialisation

Under Article 1224, sometimes the termination results from the application of a resolutive clause

(Article 1225), as the conventional termination is not mentioned. Sometimes, but the non-

performance must be serious enough, the termination remains judicial (Article 1227) or becomes

extrajudicial and unilateral (Article 1226). If the Court of Cassation admits it in certain hypotheses,

this dejudicialisation, which has become of principle, is bitterly discussed, especially in case of

unequal parties. So it is accompanied by safeguards.

First and "unless there is urgency" , the declaration of the creditor requires that prior notice be

given. Again (22), this is understood only to the extent that, as stated in Article 1226, said notice

allows the debtor the opportunity "to perform his undertaking within a reasonable time" - the

assessment of which falls to the court possibly seised. Formal notice therefore becomes useless

when non-performance is irremediable. Next, reasons must be given for the declaration of

termination. Lastly, in the event of litigation, the reversal of the burden of the trial, at the initiative

of the debtor, is not replicated by a reversal of the burden of proof, that of the seriousness of the

non-performance incumbent on the creditor. This is why the termination is, like any extrajudicial

measure, decided "at his own risk". In fact, contrary to the acquisition of a termination clause,

judicial or extrajudicial termination is subject to the seriousness of the non-performance. This

requirement, inherited from Ceccaldi v. Albertini (23), is therefore preferred to the more modern

(but from experience, scarcely more manageable) criterion of the non- performance or essential

breach of the unifying instruments. Quite beyond words, standards also converge: the debtor’s

failure must disappoint the creditor’s expectations, ruin his interest in the contract, to justify a

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sanction as radical as its termination. This was more or less the definition adopted by the Terré

draft, which the new legislation does not deem fit to reproduce.

b) The ambiguity of termination ipso jure

Article 1218 provides for the termination ipso jure of the contract when the force majeure causes

the "permanent (...) prevention" of performance (24). This wording, inherited from the Terré draft,

is ambiguous: either the text only dejudicialises the termination for accidental non-performance,

like Article 1226 for non-performance attributable to the debtor, and breaks with the case law

established in Ceccaldi. Ipso jure means that the court seised retrospectively has no discretionary

power and the termination is binding; or, like the ipso facto avoidance under the Hague

Convention, fortunately abandoned by the Vienna Convention, termination ipso jure automatically

occurs without the knowledge of the parties. In either interpretation, Article 1218 fulfils the wishes

of the proponents of the autonomy of risk theory (25). Still, one wonders whether such termination

might be tantamount to lapse covered by Article 1186, which does not specify how it occurs.

Above all, the reasons enunciated in the Ceccaldi decision against the dejudicialisation of the

termination of the contract have not lost any of their acuity. In the event of dispute, it is up to the

court to verify the existence of the force majeure, the definitive nature of the prevention of

performance, and the seriousness of the non-performance because they are not synonymous, and

there is no reason why termination ipso jure should elude that condition.

At this stage, the first trend discussed - generalisation and/or dejudicialisation of penalties for

non-performance - is verified, albeit in a highly nuanced way, for performance in kind. The

provisions examined so far presage the difficulties of concretising the second trend: the

prioritisation and combination of penalties for non-performance.

II. Prioritisation and combination of penalties for non-performance

Article 1217 paragraph 1, which sets out the range of penalties for non-performance, does not

formally prioritise them. Nevertheless, the following provisions outline a progression and

graduation of the eligible remedies (A). According to paragraph 2, “sanctions which are not

incompatible may be combined; damages may always be added to any of the others”. While the

combination of compatible penalties is affirmed, it remains unorganised (B).

A. The progression and graduation of the admissible penalties

The factors of prioritisation contained in Articles 1217 et seq. are enhanced by the powers

devolved to the court.

a) Factors of prioritisation

Penalties for non-performance are subject to varying requirements - from which time limits will be

omitted - which are all factors of prioritisation.

On the one hand, prior notice giving the debtor a chance to remedy his non-performance is a

common condition, apart from the defence of non-performance (transitional), the so-called

automatic termination in case of prevention, and judicial termination; if we admit that the

assignment is equivalent to prior notice. Article 1231 also excludes it for damages where the non-

performance is "final" (26), and this also applies to the reduction in price and the termination of

the contract. In the light of Article 1344, it is less a question of establishing the enforceability of

the obligation than it is of giving priority to performance in kind, the other penalties being

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subsidiary. This is a paradox of the Ordinance, when one knows the limits assigned to this remedy

when it is requested by the creditor: restricted performance by the debtor is excluded because of

its clearly disproportionate cost compared to the interest of the creditor, while performance at the

debtor’s expense assumes that the cost remains reasonable.

On the other hand, the requirement of seriousness of non-performance or its consequences is

common with the defence of non-performance and judicial and extrajudicial termination (certainly

ipso jure), excluding reduction in price, and the award of damages - but there must be loss. The

assessment of the seriousness of the failure varies depending on the penalty, in order to check

their proportionality. The Terré draft expressed it differently, by the variety of wordings used and

the definition of the seriousness of the non-performance justifying the termination.

Therefore, in the absence of a sufficiently serious non-performance, and in the presence of a

clearly disproportionate or even unreasonable cost of enforced performance in kind, only

pecuniary penalties - the reduction in price and damages and interests - are admissible.

b) Powers of the court

Article 1228 defining the powers of the court dealing with the termination of the contract is only

slightly innovative. In line with the former Article 1184 and the various jurisprudential drafts, it

leaves the court to decide on the termination or performance according to the "circumstances”, if

necessary by granting a final deadline to the debtor, or by awarding damages. The creditor

wishing to terminate the contract may therefore, in certain cases, be required to accept

performance of the obligation or damages. Conversely, can the person pursuing enforcement be

subject to the termination of the contract where the cost is deemed disproportionate or

unreasonable? The question remains open, too, where the non-performance is serious enough to

justify termination while the cost of the performance in kind remains proportionate or reasonable.

Article 1228 does not envisage the alternative between termination of the contract and a reduction

in price. Today, the Court of Cassation admits that in the absence of serious non-performance, the

creditor must be satisfied with a reduction in price - if necessary in the form of damages. It is

likely that despite the silence of texts, this outcome persists. The relationship between the

reduction in price and performance in kind is no longer considered. The previous solution,

favouring the reduction in price, could well be transposed to the scenario of disproportionate or

unreasonable cost to the debtor.

Uncertainty remains, lastly, on the choice between performance in kind and damages: can the

creditor seeking damages be ordered to accept performance in kind, and vice versa? Neither the

Ordinance nor the proposals of 13 March 2017 say anything on this point (27).

B. The combination of compatible penalties

Despite the increase in penalties for non-performance, which is reflected in the requirement of

formal notice, Article 1217 ultimately does not concern itself with their succession - for example,

the defence of non-performance followed by an unsuccessful performance in kind preceding a

request for termination. In the event of legal action, such a succession of penalties may give rise

to difficulties because of the prohibition of new claims at second instance and the case-law

principle of concentration of the means, or even of requests (28). The legislation focuses on the

sole assumption of combining penalties for non-performance. Those that are compatible can be

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combined, as is always the case of damages. But to say that is to say nothing at all, because while

the principle goes without saying, its implementation can prove difficult. Here, the summary

definition of “sanctions for non-performance”, considered in isolation, shows the limits of a

system that is not one: the overall logic is lacking. Contrary to appearances, the articulation of

penalties other than damages is simpler than the modulation of the latter.

a) Articulating different penalties

The imperative of consistency proscribes contradictory claims by the creditor. Thus, he cannot

request the preservation and the termination of the contract at the same time: on the one hand

performance in kind and/or a reduction in price; and the termination of the contract, on the other.

It is also necessary to reserve the submission of principal and subsidiary requests. And yet, in the

event of multiple failures, this must be tempered because the penalties are then of variable

geometry, likely to be combined according to this or that act of non-performance. Thus, it is not

absurd to claim the correction of the non-compliant part of the act of performance, and/or a

reduction in its price, and the termination of the contract for the part of the act of performance

not provided.

b) Modulating the award of damages

The difficulties here are more formidable. The assessment of damages varies according to whether

they are allocated alone or in combination with other penalties because they alter the consistency

of the contractual loss, which becomes residual. The principle of equivalence requires that the

additional damages be modulated accordingly. This is the case, for example, with those

accompanying performance in kind. On this highly disputed question, we shall confine ourselves

to two observations.

Firstly, the insufficiency of Article 1223 relating to the reduction in price is confirmed. While the

proportional reduction in price rebalances the contract by reason of the difference in value

between the promised benefit and that provided, then the boundaries become diaphanous, with

damages compensating for the same loss of value. However, unlike the Terré draft, the text does

not take care to reserve damages for "other loss". This precaution would have been salutary,

knowing that the Court of Cassation has the greatest difficulty in separating the reduction in price

and damages, the better to combine them (29).

Secondly, Articles 1231 et seq. essentially performing a recodification of established case law, and

the proposals of 13 March 2017 not being concerned with it, the discussion continues as to

damages supplementing the termination of the contract. Moreover, the debate remains unchanged

as to whether such damages compensate for the positive interest of the creditor, the interest of

performance, i.e. to obtain satisfactory performance; and/or its negative interest, the non-

conclusion of the contract, i.e. not to contract with a defaulting debtor (30).

The renewal of penalties for contractual non-performance is quite relative. The technique of each

of the penalties, inherited without much change from the old ordinary contract law or from the

special law of contracts, is at least as venerable as the Napoleonic Code. The “rejuvenation” comes

mainly from the Ordinance’s tendency to generalise and dejudicialise, to prioritise and combine

these penalties. However, the brevity, vagueness and incompleteness of Articles 1217 et seq. sow

the seeds of a rejudicialisation because the assessment of the various standards calls the

arbitration of the courts. The provisions are quite flexible, even vague, so that the courts have as

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much power as before. Consequently, here as elsewhere, the reform of the Civil Code will continue

to be written in the Bulletin of the decisions of the Court of Cassation: new on the one hand, old

on the other.

Notes

(1) For which, following that of 6 July 2016 rendered obsolete by the end of the previous

legislature, a new bill of ratification was tabled in the Senate on 9 June 2017 (texte n° 578, 2016-

2017), http://www.senat.fr/leg/pjl16-578.html.

(2) D. Tallon « L’inexécution du contrat : pour une autre présentation », RTD civ. 1994 p. 223.

(3) See H. Boucard « L’article 1218 : la force majeure contractuelle », RDC 2015 p. 779 sur le projet

du 25 févr. 2015

(4)

http://www.justice.gouv.fr/publication/Projet_de_reforme_de_la_responsabilite_civile_13032017.p

df, and the preliminary draft of 29 April 2016, http://www.textes.justice.gouv.fr/art_pix/avpjl-

responsabilite-civile.pdf; see in particular J.-S. Borghetti « L’avant-projet de réforme de la

responsabilité civile. Vue d’ensemble de l’avant-projet », D. 2016 p. 1386, et « L’avant-projet de

réforme de la responsabilité civile. Commentaire des principales dispositions », D. 2016 p. 1442 ;

M. Mekki (dir.), Avant-projet de réforme du droit de la responsabilité civile : l’art et la technique

du compromis (Réponse à la consultation publique) Lgdj/Lextenso 2016 ; P. Stoffel-Munck (dir.)

Avant-projet de loi portant réforme de la responsabilité civile, Observations et propositions de

modifications, JCP 25 juill. 2016, suppl. au no 30-35 ; Pour une réforme ambitieuse de la

responsabilité contractuelle, RDC 2016, Débats, p. 770.

(5) See H. Boucard "The curious process of reforming France's law of obligations", Montesquieu

Law Review 2015 p. 62.

(6) P. Catala (dir.) Avant-projet de réforme du droit des obligations et du droit de la prescription,

Rapport à M. Pascal Clément, Ministre de la Justice, Garde des Sceaux, 22 septembre 2005, La

documentation française 2005; F. Terré (dir.) Pour une réforme du droit des contrats Dalloz 2009 ;

Pour une réforme du droit de la responsabilité civile Dalloz 2011 ; Pour une réforme du régime

général des obligations Dalloz 2013.

(7) For direct amendments only, see the crescendo of form and substance, Article 1231 (former

Article 1146) on the requirement of formal notice, Article 1231-6 (former Article 1153) on the late

payment of monetary obligations; Article 1231-3 (former Article 1150) codifying the case-law

assimilation of gross negligence to fraudulent default, which precludes the requirement of

foreseeability of contractual damage; Article 1218 (former Articles 1147 and 1148) abandoning

the duality of the extraneous cause, mentioned in the text, and the disappearance of the article

devoted to the penalty clause (former Article 1226 et seq.), with Article 1231-5 summarising the

provisions of former Articles 1230 and 1231 only.

(8) Of the works commenting the Ordinance, see e.g. G. Chantepie et M. Latina La réforme du droit

des obligations, Commentaire théorique et pratique dans l’ordre du Code civil Dalloz 2016 ; O.

Deshayes, T. Genicon et Y.-M. Laithier Réforme du droit des contrats, du régime général et de la

preuve des obligations, Commentaire article par article LexisNexis 2016 ; M. Fabre-Magnan Droit

des obligations vol. 1 Contrat et engagement unilatéral Puf 2016 ; B. Fages et alii Le Lamy, Droit

du contrat Wolters Kluwer 2016 ; C. Larroumet et S. Bros Traité de droit civil t. 3 Les obligations,

Le contrat Economica 2016 ; adde L’inexécution des contrats, dir. O. Tournafond, Dr. et patr. 2016

no 259 p. 38. Sur le projet du 25 févr. 2015, v. par ex. H. Boucard « Le nouveau régime de

l’inexécution contractuelle », La réforme du droit des obligations en France, op. cit. p. 153 ; Y.-M.

Laithier « Les règles relatives à l’inexécution des obligations contractuelles », Projet d’ordonnance

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portant réforme du droit des contrats, du régime général et de la preuve des obligations,

Observations et propositions de modifications, dir. N. Molfessis, JCP 2015 suppl. au no 21 p. 47 ;

M. Mekki « Les remèdes à l’inexécution dans le projet d’ordonnance portant réforme du droit des

obligations », Critiques constructives du projet d'ordonnance portant réforme du droit des

obligations : parfaire sans défaire (réponse à la consultation publique), dir. M. Mekki, Gaz. Pal. 29-

30 avr. 2016, nos 119-120, p. 37.

(9) See e.g. « Repenser la garantie d’éviction et des charges ? Du passé ne faisons pas table rase »,

RDC 2016 p. 528 ; P. Jourdain « Quel avenir pour la distinction des obligations de résultat et de

moyens ? », JCP 2016 I 909.

(10) Assuming that it differs from a debtor's home (the creditor who is late in performing his own

obligations) and from the creditor's obligations (Obligenheiten), see H. Boucard L’agréation de la

livraison dans la vente, Essai de théorie générale Université de Poitiers diff. Lgdj 2005 préf. P.

Remy no 150, 492 et s.

(11) “Where performance is due, and without legitimate reason the creditor refuses to accept

performance, or obstructs it by his own actions, the debtor may put him on notice to accept or

permit performance” – the syntax featuring in the draft French version of the Ordinance was not

corrected: it is ultimately the performance of the obligation in question.

(12) See e.g. Y.-M. Laithier Étude comparative des sanctions de l’inexécution du contrat Lgdj 2004

préf. H. Muir Watt nos 4 s.

(13) See in particular O. Deshayes Rép. civ. Dalloz vo Exception d’inexécution, 2016.

(14) See in particular V. Forti Rép. civ. Dalloz vo Exécution forcée en nature, 2016.

(15) See e.g. Z. Jacquemin « Pour une reconnaissance de la spécificité de la responsabilité

contractuelle dans les effets de la responsabilité », RDC 2016 p. 808. The proposals of 13 March

2017 do not venture to distinguish between them, covering only reparation in kind as an effect of

civil liability; see Article 1258 et seq.

(16) Cf. M. Faure-Abbad « L’article 1222 : la faculté de remplacement », RDC 2015 p. 784.

(17) On the limits of the contrast between positive and negative obligations in this respect, when

"it is necessary (...) to destroy in order to rebuild according to the contract", see M. Faure-Abbad

« L’article 1222 : la faculté de remplacement », RDC 2015 p. 784.

(18) See in particular É. Savaux « Article 1223 : la réduction du prix », RDC 2015 p. 786.

(19) See our thesis above, specifically n°s 22 et seq, 410 et seq., 545 et seq.

(20) See in particular T. Genicon La résolution du contrat pour inexécution Lgdj 2007 préf. L.

Leveneur.

(21) See H. Boucard « Le nouveau régime de l’inexécution contractuelle », eod. loc. no 16 s.

(22) i.e. in the light of the distinction between indicative and mandatory periods, to which

reference is made at Article 1225 on termination clauses.

(23) F. Terré, Y. Lequette et F. Chénedé Les grands arrêts de la jurisprudence civile t. 2

Obligations, Contrats spéciaux, Sûretés Dalloz 2015 no 180.

(24) See H. Boucard « Article 1218 : la force majeure contractuelle », eod. loc.

(25) On which see in particular O. Deshayes Rép. civ. Dalloz vo Théorie des risques, 2016.

(26) See Article 1252 of the proposals of 13 March 2017.

(27) Except to equate performance in kind with reparation in kind (which would be a new "reversal

of perspective" - see J. Carbonnier, Droit civil, vol. 2 Les biens, Les obligations PUF-Quadrige 2004

no 1070), only covered by the proposals of 13 March 2017, and which Article 1261 forbids

imposing on the "victim".

(28) On which see, lastly, M. Reverchon-Billot, La question litigieuse en matière contractuelle (Essai

sur le traitement procédural du droit des contrats) Dalloz 2017 préf. É. Savaux.

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(29) See H. Boucard Rép. civ. Dalloz vo Responsabilité contractuelle, 2014, nos 460 s.

(30) See ibid. and references; adde e.g. É. Savaux « Les dommages et intérêts en cas de résolution

du contrat : des principes à la casuistique », RDC 2015 p. 845.